Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Prima Partners LLC v. Waterhouse

United States District Court, D. Colorado

May 3, 2018

PRIMA PARTNERS, LLC, Plaintiff,
v.
LINDA L. WATERHOUSE, in her individual capacity and in her capacity as executor of the Estate of Stephen L. Waterhouse, ESTATE OF STEPHEN L. WATERHOUSE, STEPHEN E. TISMAN, in his capacity as executor of the Estate of Stephen L. Waterhouse, Defendants.

          ORDER

          Michael E. Hegarty, United States Magistrate Judge.

         Plaintiff Prima Partners, LLC seeks to exclude the testimony of Robert A. Woellner-an expert designated by Defendants Linda L. Waterhouse, Estate of Stephen L. Waterhouse, and Stephen E. Tisman (collectively “the Waterhouses”). I find that four of Mr. Woellner's opinions improperly invade the province of the jury and are not helpful to the jury's resolution of Prima Partners' claims. Specifically, Mr. Woellner may not testify as to the Waterhouses' knowledge of mold growth, the parties' agreement prior to closing, whether the Waterhouses promptly addressed all moisture and mold issues, and the conditions in the underlying property that are normal and typical. However, I will allow Mr. Woellner to opine that certain conditions in the property indicate limited exposure to moisture, that the presence of a musty odor may be caused by the home being closed to outdoor air for approximately ten months, and that homeowners are generally unaware of unseen defects. Accordingly, I grant in part and deny in part Prima Partners' Motion to Exclude Disclosed Opinion Testimony of Defendants' Expert Robert A. Woellner.

         BACKGROUND

         This case arises out of Prima Partners' purchase of real property from the Waterhouses. Am. Compl., ECF No. 35. Prima Partners asserts the Waterhouses knowingly failed to disclose an extensive mold problem in the lower level of the property, a history of water intrusion issues, and a leak in the roof. Id. ¶¶ 18-19. Prima Partners asserts claims for breach of contract, false representation, fraudulent concealment, attorney's fees, and exemplary damages. Id. ¶¶ 21-53. I granted the Waterhouses' Motion for Summary Judgment only as to the fraud claims and only as they relate to the first two defects. Order on Defs.' Mot. for Summ. J., ECF No. 84.

         On September 29, 2017, the Waterhouses served Mr. Woellner's initial expert report. Initial Expert Report of Robert A. Woellner, ECF No. 59-1. Mr. Woellner is an industrial hygienist who regularly provides environmental assessments and inspections for real property. Id. at 18. Mr. Woellner's initial report reviews the evidence in this case and opines that (1) various issues and imperfections in the underlying residence are normal and typical for homes of similar age and location, (2) he has seen no evidence that the Waterhouses knew of asbestos in the home, [1] (3) he has seen no evidence that the Waterhouses had knowledge of remaining unmitigated mold growth in the home, (4) and all parties agreed prior to closing that the roof needed to be replaced. Id. at 3-9.

         The Waterhouses served Mr. Woellner's rebuttal report on October 26, 2017. Rebuttal Expert Report of Robert A. Woellner, ECF No. 59-2. In this report, Mr. Woellner rebuts two of Prima Partners' expert reports. Id. Mr. Woellner first disputes the experts' statements regarding the property's condition. Id. at 3. He then opines that it is common for unseen moisture and mold issues to be unknown to homeowners, and he states that the presence of a musty odor in a home that is closed for approximately ten months out of the year is normal and typical. Id. at 3-5. Lastly, he asserts that all moisture and mold issues known to the Waterhouses were promptly addressed. Id.

         On January 26, 2018, Prima Partners filed the present motion to exclude Mr. Woellner from testifying. Mot. to Exclude, ECF No. 59. Prima Partners contends the following opinions are improper: (1) Mr. Woellner has seen no evidence indicating the Waterhouses had knowledge of asbestos in the home, (2) Mr. Woellner has seen no evidence demonstrating the Waterhouses knew of unmitigated mold growth in the home, (3) all parties agreed prior to closing that the roof needed to be replaced, and (4) all moisture and mold issues known to the Waterhouses were promptly addressed. Id. at 2. Prima Partners contends these opinions invade the province of the jury and are not true expert testimony. Id. at 3-5.

         In response, the Waterhouses argue that Mr. Woellner is not opining as to ultimate issues, because he states only that he “has seen no evidence” of the Waterhouses' knowledge, not that the Waterhouses actually lacked knowledge. Id. at 3. Additionally, the Waterhouses argue that Mr. Woellner is qualified based on his experience to testify that it is common for homeowners to be unaware of unseen mold issues. Id. at 4. Finally, the Waterhouses assert that Mr. Woellner may permissibly offer opinions on what defects are normal and typical for homes of similar age, location, and construction. Id. at 6-9. Prima Partners subsequently filed a reply brief. Reply in Supp. of Mot. to Exclude, ECF No. 72.

         LEGAL STANDARDS

         Federal Rule of Evidence 702 states, in pertinent part:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

         Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified to give opinions in a particular subject area. Rather, courts must perform a two-step analysis. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). First, courts determine whether the expert is qualified by “knowledge, skill, experience, training, or education, ” id. (quoting Fed.R.Evid. 702), and whether the testimony will assist the jury in understanding the evidence or determining a fact in issue. See, e.g., United Telecomms., Inc. v. Am. Television & Comm. Corp., 536 F.2d 1310, 1317 (10th Cir. 1976) (“[E]xpert testimony is not necessary where the matter in issue is such that the jury can be expected to draw the correct inferences from the facts presented.”).

         Next, the Court must assess the specific proffered opinions for relevance and reliability. See 103 Investors I, L.P., 470 F.3d at 990; see also Fed. R. Evid. 702 (requiring that the testimony be “based upon sufficient facts or data, ” be the “product of reliable principles and methods, ” and reflect a reliable application of “the principles and methods . . . to the facts of the case”). Rule 702 “imposes on the district court a gatekeeper function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). To execute that function, the Court must “assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). When assessing reliability, “the court may consider several nondispositive factors: (1) whether the proffered theory can [be] and has been tested; (2) whether the theory has been subject to peer review; (3) the known or potential rate of error; and (4) the general acceptance of a methodology in the relevant scientific community.” 103 Investors I, L.P., 470 F.3d at 990 (citing Daubert, 509 U.S. at 593-94). These considerations are not exhaustive. Rather, “the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Ultimately, the test requires that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of any expert in the relevant field.” Id.

         While the proponent of the challenged testimony has the burden of establishing admissibility, its proffer is tested against the standard of reliability, not correctness; a proponent need only prove that “the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied.” United States v. Crabbe,556 F.Supp.2d 1217, 1221 (D. Colo. 2008) (citing Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999)). “[E]xclusion of expert testimony under Rule 702 ‘is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.